Securities Exchange Act of 1934
Kraft Foods, Inc. Offer for Ordinary Shares and ADSs of Cadbury plc
Dear Mr. Moloney:
We are responding to your letter dated December 8, 2009 to Michele Anderson, Christina Chalk, and Josephine Tao, as supplemented by telephone conversations with the staff, with regard to your request for exemptive relief. To avoid having to recite or summarize the facts set forth in your letter, we attach the enclosed photocopy of your correspondence. Unless otherwise noted, capitalized terms in this letter have the same meaning as in your letter of December 8, 2009.
On the basis of your representations and the facts presented in your letter, the United States Securities and Exchange Commission hereby grants exemptions from the following provisions of the Exchange Act and rules thereunder:
Rule 14d-7(a)(1)and Section 14(d)(5) of the Exchange Act. The exemption from these provisions permits withdrawal rights to terminate at the end of the Initial Offer Period and before the expiration of a Voluntary Extension of the Initial Offer Period under the circumstances described in your December 8, 2009 letter.
Rules 14d-10(a)(2) and (c) and 14d-11(b) and (f) under the Exchange Act. This exemption permits Kraft to conduct the Mix and Match Facility in the manner described in your December 8, 2009 letter.
Further, on the basis of the representations in your letter and the facts presented, in particular that all conditions of Rule 14e-5(b)(12)(i) will be satisfied, except for possibly Rule 14e-5(b)(12)(i)(B), and without necessarily concurring in your analysis, the Division of Trading and Markets will not recommend to the Commission enforcement action under Rule 14e-5 if the Prospective Purchasers purchase Cadbury ordinary shares outside the Offer as described in your letter, subject to the following conditions:
no purchases or arrangements to purchase Cadbury ordinary shares otherwise than pursuant to the Offer are made in the U.S.;
prominent disclosure of the possibility of such purchases by the Prospective Purchasers, otherwise than pursuant to the Offer, will be included in the U.S. Offer Documents;
prominent disclosure of the manner in which information regarding such purchases will be disseminated will be included in the U.S. Offer Documents;
the Prospective Purchasers shall disclose in the U.S. information regarding such purchases to the extent such information is made public in the United Kingdom pursuant to the City Code;
the Prospective Purchasers shall comply with any applicable rules in the United Kingdom, including the City Code, the rules against insider dealing and the rules and regulations of the United Kingdom Listing Authority (in particular, the rules regulating market conduct/market abuse);
in the event that the Prospective Purchasers purchase or make arrangements to purchase Cadbury ordinary shares for a consideration greater than the Offer price, the Offer price will be increased to match the higher price paid outside the Offer;
upon request of the Division of Trading and Markets, the Prospective Purchasers shall disclose to it a daily time-sequenced schedule of all purchases of Cadbury ordinary shares made by any of them outside of the Offer, on a transaction-by-transaction basis, including (i) a description of the size, broker (if any), time of execution and purchase price; and (ii) if not executed on the London Stock Exchange, the exchange, quotation system or other facility through which the purchase occurred;
upon request of the Division of Trading and Markets, the Prospective Purchasers shall transmit the information specified in clauses (i) and (ii) in the bullet above to its offices in Washington, D.C. within 30 days of its request;
the Prospective Purchasers shall retain all documents and other information required to be maintained pursuant to this no-action for a period of not less than two years from the date of termination of the Offer;
representatives of the Prospective Purchasers shall be made available (in person at the offices of the Division of Trading and Markets or by telephone) to respond to inquiries of the Division of Trading and Markets relating to such records; and
except as otherwise provided in this letter, the Prospective Purchasers shall comply with Rule 14e-5.
The foregoing exemptive and no-action relief is based solely on the representations and the facts presented in your letter dated December 8, 2009 and does not represent a legal conclusion with respect to the applicability of the statutory or regulatory provisions of the federal securities laws. The relief is strictly limited to the application to this transaction of the statutory provisions and rules listed above. You should discontinue this transaction pending further consultations with the staff if any of the facts or representations set forth in your letter change. In addition, these positions are subject to modification or revocation if at any time the Commission or the Divisions of Corporation Finance and Trading and Markets determine that such action is necessary or appropriate in furtherance of the purposes of the Exchange Act.
We also direct your attention to the anti-fraud and anti-manipulation provisions of the federal securities laws, including Sections 10(b) and 14(e) of the Exchange Act, and Rule 10b-5 thereunder. The participants in this transaction must comply with these and any other applicable provisions of the federal securities laws. The Divisions of Corporation Finance and Trading and Markets express no view on any other questions that may be raised by the proposed transaction, including but not limited to, the adequacy of disclosure concerning and the applicability of any other federal or state laws to the proposed transaction.
For the Commission,
By the Division of Corporation Finance
pursuant to delegated authority,
Michele M. Anderson
Office of Mergers and Acquisitions
Division of Corporation Finance
Josephine J. Tao
Office of Trading Practices and Processing
Division of Trading and Markets
The Incoming Letters are in Acrobat format.
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